CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 9 juin 2022

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padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s7CB6920E { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s62945D10 { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }   FIFTH SECTION CASE OF DADASHOV AND HAJIBEYLI v. AZERBAIJAN (Applications nos. 47915/09 and 38080/12)             JUDGMENT   STRASBOURG 9 June 2022   This judgment is final but it may be subject to editorial revision. In the case of Dadashov and Hajibeyli v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström, President,   Lətif Hüseynov,   Kateřina Šimáčková, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the applications (nos.   47915/09 and 38080/12) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Azerbaijani nationals (“the applicants”) represented by various lawyers, relevant details listed in the appended table, on the various dates, indicated therein; the decision to give notice of the complaints concerning Articles 5 and 6 of the Convention in respect of both applications and the complaint concerning Article 3 of the Convention in respect of application no. 38080/12 to the Azerbaijani Government (“the Government”) represented by their Agent, Mr Ç. Əsgərov and to declare the remainder of the applications inadmissible; the decision of the President of the Section to give Mr. R. Mustafazade leave to represent the applicant in application no. 38080/12 in the proceedings before the Court (Rule 36 § 4 (a) in fine of the Rules of the Court); the parties’ observations; Having deliberated in private on 19 May 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The present applications concern the applicants’ arrest, detention and conviction in the administrative proceedings against them on the charge of a failure to comply with the lawful order of a police officer. They allege that their rights protected under Articles 5 § 1 and 6 §§ 1 and 3 of the Convention were breached by the domestic authorities. Relying on Article 3 of the Convention, the applicant in application no. 38080/12 also complains about the conditions of his detention in police custody. Application no. 47915/09 2.     On 6 February 2009 the applicant was summoned by a phone call to the Goychay district police station where he was arrested upon his arrival. A record of administrative arrest and an administrative-offence report were drawn up against him, indicating that he had been arrested at 11 p.m. on 6   February 2009 for deliberately disobeying the orders of the police officers, and charged with an administrative offence under Article   310 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”). He was kept in police custody overnight. 3.     On 7 February 2009 the applicant was taken to the Goychay District Court, which found him guilty under Article 310 of the CAO and sentenced him to three days’ administrative detention. According to the transcript of the court hearing, the police officers stated before the court that they had stopped a car to inform the driver about the danger he had caused by driving through a red light; the applicant, who was a passenger in the car, had questioned their authority as non-traffic police officers to stop the car, had sworn at them, had instructed the driver to leave the scene and had disobeyed the police officers’ order. The applicant contested this version of the events before the court. 4.     The applicant appealed against his administrative conviction, claiming that he had not been served with a copy of the administrative-offence report or with any other documents in his case file. He also alleged that he had not been provided with a lawyer, that the first-instance court had dismissed his procedural request to call the driver of the car who was the eyewitness of the incident, and that the first-instance court’s decision had not been adequately reasoned. 5.     By a final decision of 3 March 2009, the Shaki Court of Appeal dismissed the appeal. The appellate court heard two of the witnesses on behalf of the applicant but not the driver of the car. Application no. 38080/12 6.     On 31 January 2012 the applicant was arrested by police officers and a record of administrative arrest was drawn up against him, indicating that he had been arrested at 9.50 p.m. on 31   January 2012 for deliberately disobeying the orders of the police officers. He was taken to the Sabail district police station and was kept in police custody overnight. 7.     On 1 February 2012 an administrative-offence report was issued. The report stated that the applicant had climbed on outdoor string lights in front of the embassy of Iran building, had ignored the lawful warning of the police officers, had had an argument with the police officers in this regard and had committed an administrative offence under Article 310 of the CAO. 8.     On the same day, the applicant was taken to the Sabail District Court, which found him guilty under Article 310 of the CAO and sentenced him to three days’ administrative detention. The court relied only on the administrative-offence report drafted by the police officers. 9.     The applicant appealed against his administrative conviction arguing that his arrest and detention had been unlawful, that he had not been afforded adequate time and facilities to prepare his defence, that the hearing before the first-instance court had been de facto closed to the public, and that the first ‑ instance court’s decision lacked adequate reasoning. He further argued that the first-instance court had not obtained and examined the video footage of the location of the alleged incident or the testimony of eyewitnesses, and had in particular not arranged for the examination of the string lights in question, since the latter were on the wall and there had been no way of climbing on or damaging them, as alleged by the police. Finally, he argued that he had been detained in the corridor of the Sabail district police station from around 10   p.m. on 31 January 2012 to 11 a.m. on 1 February 2012 without being provided with food, drinking water and bedding. 10.     By a final decision of 17 February 2012, the Baku Court of Appeal dismissed the appeal. The appellate court made no mention of the applicant’s particular complaints. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 11.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 12.     The applicants alleged that their administrative arrest and detention had been unlawful. In particular, the applicant in application 47915/09 argued that the authorities had failed to demonstrate the existence of any exceptional circumstances justifying his administrative arrest and detention under Article   398 of the CAO, and the applicant in application 38080/12 argued that the period of detention following his arrest had exceeded the statutory limitations under domestic law, was not justified and in breach of his right to liberty. 13.     The Court refers to the general principles established in its case-law and set out in Nasirov and Others v. Azerbaijan (no.   58717/10, §§   46 ‑ 47, 20   February 2020). 14.     The Court notes that the legal issues raised by the applicants under Article 5 of the Convention in the present cases are similar to the ones examined in Nasirov and Others (ibid., §§ 28-30) and concern the same domestic legislation. 15.     In particular, as in the above-mentioned case, in the present cases neither the domestic authorities nor the Government provided any specific reasons to the Court justifying the applicants’ administrative arrest, nor did they objectively indicate that without such a measure it would have been “impossible” to achieve the goals laid down in the relevant legislation, such as, for example, ensuring the expedient and correct examination of their cases, although these were essential elements pertaining to the legality of the deprivation of liberty (ibid., § 50). 16.     The Court concluded in Nasirov and Others (ibid., §§ 51-52) that the applicants’ deprivation of liberty was unjustified, arbitrary and unnecessary irrespective of its duration, and it finds no reason to depart from the conclusion it reached in that case. 17.     It follows that there has been a violation of Article 5 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 18.     The applicants alleged that they had not had a fair hearing in any of the proceedings concerning the alleged administrative offences, in particular, they had not been given sufficient time and facilities to prepare their defence, and the domestic courts’ decisions had lacked adequate reasoning. Additionally, the applicant in application no. 47915/09 complained that he had not been provided with the opportunity to defend himself through effective legal assistance and the questioning of witnesses, and the applicant in application no. 38080/12 complained that he had not had a public hearing before the first-instance court. 19.     The Court notes at the outset that there is a significant degree of similarity between the legal issues raised by the applicant under Article 6 of the Convention in the present cases and previous cases against Azerbaijan concerning the administrative convictions of applicants under the CAO (see Gafgaz Mammadov v. Azerbaijan , no.   60259/11, §§ 74-96, 15 October 2015; Huseynli and Others v.   Azerbaijan , nos. 67360/11 and 2 others, §§   110 ‑ 35, 11 February 2016; Savalanli v. Azerbaijan [Committee], no. 30608/14, §§   20 ‑ 24, 14 January 2021; and Ibrahimov v.   Azerbaijan [Committee], no.   39466/16, §§ 18-20, 14 January 2021). 20.     In particular, as in the latter cases, the applicants in the present cases   were held in police custody without any contact with the outside world and   shortly afterwards (after spending the night in police custody)   were taken to a court   and convicted. The domestic courts relied mainly on reports and the statements given by the police officers who drew up those reports, without giving any further reasons for their decisions. 21.     In this connection, the Court notes that the witnesses at the respective hearings were the very same police officers who had arrested the applicant in application no. 47915/09 and that no witness was questioned in the case of the applicant in application no. 38080/12. The domestic courts dismissed the request of the applicant in application no. 47915/09 to question the driver of the car who had been with him at the time of the alleged incident, and dismissed the requests of the applicant in application no. 38080/12 to examine the testimony of eyewitnesses or the video footage of the place where the incident had allegedly happened (see paragraphs 3-5 and 8-10 above). It follows that the domestic courts merely accepted the police’s versions of the facts and the charges as presented in the relevant police reports without considering any other explanations, addressing the serious allegations raised by the applicants or attempting in some other way to clarify the disputed facts. 22.     The Court therefore considers that   the   administrative proceedings in the present cases, considered as a whole, were not in conformity with the guarantees of a fair trial under Article 6 §§ 1 and 3 of the Convention   (see   Gafgaz Mammadov,   cited above,   § 96, and Huseynli and   Others , cited above, § 135). 23.     Furthermore, having regard to the above finding of a violation of Article 6 §§ 1 and 3 of the Convention, the Court finds it unnecessary to rule on the issue whether the refusal by the applicant in application no.   47915/09 of legal assistance at the pre-trial stage of the proceedings and/or at the trial constituted an unequivocal waiver of the right to a lawyer. There is also no need to examine the arguments of the applicant in application no. 38080/12 concerning the alleged lack of public hearings (see Mirzayev and Others v.   Azerbaijan [Committee], nos. 12854/13 and 2   others, § 30, 20 July 2017, and Agayev v. Azerbaijan [Committee], no.   66917/11, § 25, 14 May 2020). ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 24.     The applicant in application no. 38080/12 alleged that he had been detained in the corridor of the Sabail district police station from around 10   p.m. on 31 January 2012 to 11   a.m. on 1 February 2012 without being provided with food, drinking water and bedding. 25.     The Court refers to its well-established case-law principles regarding the assessment of whether the treatment complained of attained the minimum level of severity to fall within the scope of Article 3 of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90, ECHR 2015, and Korban v. Ukraine , no. 26744/16, § 104, 4 July 2019). 26.     In the present case the Government submitted that the applicant had failed to produce any evidence in support of his complaint. The applicant maintained his complaint and disagreed with the Government as regards the lack of provision of food, drinking water and bedding. 27.     However, the Court notes that the applicant failed to submit any evidence or details in support of his account of the conditions of detention, either in the domestic proceedings or before the Court (compare Mehdiyev v.   Azerbaijan , no. 59075/09, § 80, 18   June 2015, and Yagublu v. Azerbaijan [Committee], no. 69686/12, §§   32 ‑ 43, 15 July 2021). The Court has held in its case-law that in cases which concern conditions of detention, applicants are expected in principle to submit detailed and consistent accounts of the facts complained of and to provide, as far as possible, some evidence in support of their complaints (see Visloguzov v. Ukraine , no. 32362/02, § 45, 20 May 2010, and Korban , cited above, §   106). 28.     Therefore, having regard to all the material in its possession, the Court finds that this complaint is inadmissible as manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29.     The applicant   in application no. 47915/09 claimed 20,000 euros (EUR) and the applicant in application no. 38080/12 claimed EUR   14,000 in respect of non-pecuniary damage; the applicant in application no. 47915/09 claimed EUR 1,000 and the applicant in application no. 38080/12 claimed EUR 1,460 for the costs and expenses incurred in the proceedings before the Court. The applicant in application no. 38080/12 submitted a contract with his representative in support of his claim and asked that the compensation in that connection be paid directly into his representative’s bank account. 30.     The Government submitted that the applicants’ claims were unsubstantiated and excessive. 31.     The Court awards each applicant EUR 4,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on that amount. 32.     Having regard to the documents in its possession, the Court considers it reasonable to award to the applicant in application no. 38080/12 the amount of EUR 500 covering costs under all heads, to be paid directly into the bank account of his representative, Mr   R.   Mustafazade, and to make no award to the applicant in application no. 47915/09 for the legal costs since he failed to produce any document in support of his claim. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaints under Article 5 § 1 and Article 6 §§ 1 and 3 of the Convention admissible and the remainder of application no.   38080/12 inadmissible; Holds that there has been a violation of Article 5 § 1 of the Convention in respect of both applicants; Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention in respect of both applicants; Holds (a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (b)   EUR 4,000 (four thousand euros), plus any tax that may be chargeable, to each applicant in respect of non-pecuniary damage; (c)   EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, to the applicant in application no.   38080/12, in respect of costs and expenses, to be paid directly into his representative’s bank account; (d)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 9 June 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President APPENDIX No. Application no., Date of introduction Applicant’s name Year of birth Place of residence Representative’s name 1. 47915/09 26/08/2009 Adil Gadir oglu DADASHOV   1986 Goychay Agil LAYIJ 2. 38080/12 02/06/2012 Tural Vagif oglu HAJIBEYLI   1987 Baku Ruslan MUSTAFAZADE